The Question of Matrimonial Property

The legal terrain around the issue of distribution of matrimonial property has all been a thorny one in Kenya. It needs to be settled.It has undergone a lot of positive and negative transformation. A new benchmark has been set by the Constitution in Article 45 (3) which provides that parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.

The courts were initially guided by the Kivuitu Case which dictated that each spouse would get a share of the matrimonial property given that it recognised indirect contribution to the acquisition of matrimonial property. It recognised the facts that even a housewife contributed to the acquisition of matrimonial property since she took care of the children and the husband when he was busy generating income.

This state of affairs was upset by the Echaria judgment that changed the foregoing and said that a spouse was entitled to a share of the matrimonial property to the extent of the proven contribution. A spouse had to prove the contribution they had made. This caused a lot of hue and cry. It obviously generated a lot of inequality.

With this in mind the committee of experts generated Article 27 (1) of the Constitution provides every person is equal before the law and has the right to equal protection and equal benefit of the law. (3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.

This was also largely informed by Article I of The Convention on the elimination of discrimination against women which stipulates that for the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

This journey towards equality does not the end with the Constitution. There was need to come up with a human rights and equality based piece of legislation that will rope and enable the implementation of the Constitution. Towards this, we have the Matrimonial Property Bill. The Bill provides amongst many other things that; “contribution” means monetary and non-monetary contribution and includes-

(a) domestic work and management of the matrimonial home;

(b) childcare;

(c) companionship;

(d) management of family business or property; and

(e) farm work.

“Matrimonial home” means any property that is owned or leased by one or both spouses and occupied by the spouses as their family home, and includes the surrounding residential landing. Under Section 5(1)“Matrimonial property” means

(a) the matrimonial home or homes;

(b) household goods and effects in the matrimonial home or homes;

(c) both immovable and moveable property, owned by either spouse, acquired during the subsistence of marriage;

(d) any other property acquired during the subsistence of a marriage.

Notwithstanding subsection (1), any property held by a spouse as trust property whether acquired by way of inheritance or otherwise, shall not form part of matrimonial property. It is interesting to note that Subsection (1) above does not apply where spouses have by agreement entered into before or during the marriage, otherwise determined their property rights. This could open the space for pre nuptials. How ready are we?

Section 6 puts the final nail on the thorny issue of issue of equality. It provides that ownership of matrimonial property, shall be deemed to vest in the spouses in equal shares irrespective of the contribution of either of them towards the acquisition thereof, and shall be divided accordingly upon the occurrence of divorce or dissolution of the marriage provided that in appropriate circumstances a determination can be made during the subsistence of the marriage.

One can acquire an interest in the property by contribution. Section 8 of the Bill proposes that where one spouse acquires property whether before or during the marriage and the property is not and does not become matrimonial property, but the other spouse makes a quantifiable contribution towards the improvement of the property, the spouse who makes a contribution shall acquire a beneficial interest in the property equivalent to the contribution made. We can as such acquire property through contribution. The challenge will be keeping matrimonial accounts for the purposes of determining the level of ownership. Will this entry commercialise marriages or encourage couples to sit and do accounts together as they bond.